State v. Jackson

Decision Date13 July 1999
Docket NumberNo. 98-0525-CR.,98-0525-CR.
Citation229 Wis.2d 328,600 N.W.2d 39
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Frederick G. JACKSON, Defendant-Appellant.
CourtWisconsin Court of Appeals

On behalf of the defendant-appellant, the cause was submitted on the briefs of Allan D. Krezminski of the Law Office of Allan D. Krezminski, of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and David J. Becker, assistant attorney general.

Before Wedemeyer, P.J., Fine and Schudson, JJ.

FINE, J.

Frederick G. Jackson appeals from a judgment, entered on his guilty plea, convicting him of conspiracy to possess cocaine with intent to deliver, as a second or subsequent offense, see §§ 961.41(1x), 961.16(2)(b)1, 961.41(1m)(cm)1, & 961.48, STATS., and from the trial court's order denying his motion for post-conviction relief. He claims that the trial court should have ruled inadmissible the test results of a sample of his urine that was taken by hospital personnel, and that the trial court should have suppressed what he told a police officer. He also contends that he was deprived of his constitutional right to effective assistance of counsel. We affirm.

I.

On May 29, 1997, Milwaukee police officers were investigating a report they had received complaining about gunshots when they saw Jackson driving fast on a Milwaukee street. It was around 10:30 p.m. They stopped Jackson. According to the testimony of one of the arresting officers at the preliminary examination, Jackson had "some white substance" that looked like cocaine "[a]ll over his mouth and teeth." When one of the officers asked Jackson what was in his mouth, he fled.

Jackson was ultimately stopped and arrested. The officers called an ambulance, which took Jackson to a hospital, where his urine sample was collected and analyzed. The record does not reveal the official results of the urine test but, apparently, it showed that he had cocaine in his system. Although arrested on May 29, Jackson was not given a probable-cause hearing until June 5, 1997.

On June 2, 1997, Jackson was interviewed by a Milwaukee police detective. As the detective gave Jackson the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), Jackson asked if the detective could arrange for him to see a lawyer. The detective testified:

I told him I could not do that, and that I was going to end my interview with him. He stated he wanted to talk to me now. I stated that he would have to waive his right to an attorney and he would have to be very clear about that which he stated yes, he did want to do that because he wanted to cooperate in giving a statement and answering my questions.

According to the detective, Jackson "initiated then by saying that he wanted to talk to me, and he was very, very persistent about that, and I simply told him I couldn't because he wanted a lawyer, and he continued with that, and I told him the only way this would take place is by him waiving that right to me verbally, stating that he no longer wanted the lawyer and then I could proceed." Jackson then waived his right to an attorney. Jackson told the detective about his involvement in a cocaine transaction.

On cross-examination, the detective testified that in giving Jackson his Miranda warnings, he told him that the lawyer would be appointed for him "once charges were established" and that then "the Public Defender's Office would step in for his defense."

Jackson testified at the suppression hearing that when he asked for a lawyer the detective told him:

[I]t would look good that you're not a hardened criminal if you would proceed to make a statement without the lawyer, because at that point what he was saying to me, that, you know, if I was really going to come clean like that why am I hiding behind the attorney. That was the general impression that I get, and I wanted the attorney because I didn't want to believe it.

Jackson retreated from this assertion, however, in the following exchange during his cross-examination by the assistant district attorney:

Q He [the detective] never said: Well, if you're not a hardened criminal you wouldn't be saying it [asking for a lawyer], did he?
A He didn't say it in that direct term, no.

Jackson also admitted that he never told the detective that he would not answer any more questions, and that the detective did not physically force him to answer his questions.

The trial court found that the warnings required by the Miranda decision "were given and they were complied with." The trial court also found that, based in part on Jackson's extensive prior experience with the criminal justice system and its perception that Jackson was "a fairly intelligent" person, Jackson made a "knowing and intelligent waiver" of his rights under the Miranda decision.

II.

Jackson makes three arguments in support of his bid for vacatur of his guilty plea. First, he claims that the trial court should have ruled inadmissible the results of the urine test that was done at the hospital. Second, he argues that the trial court should have suppressed his statement to the detective. Third, he contends that his lawyer was ineffective for failing to raise and litigate an alleged violation of County of Riverside v. McLaughlin, 500 U.S. 44 (1991). We analyze de novo legal issues, including questions of constitutional fact, raised by Jackson's contentions. See State v. Williams, 220 Wis. 2d 458, 464, 583 N.W.2d 845, 847 (Ct. App. 1998)

. On the other hand, the trial court's findings of historical fact are given great deference and will not be overturned unless they are "clearly erroneous." See RULE 805.17(2), STATS. (made applicable to criminal proceedings by § 972.11(1), STATS.); Williams, 220 Wis. 2d at 464,

583 N.W.2d at 847.

A. Urine test.

Jackson's first claim of error is that the trial court should have excluded the results of the hospital urinalysis. We assume, without deciding, that his appeal on this point is permitted by § 971.31(10), STATS. (A defendant may appeal from an order denying a motion to suppress evidence or a motion challenging the admissibility of the defendant's statement even though the judgment of conviction rests on a guilty plea.).2

Jackson conceded before the trial court, and also concedes here, that there is no Fourth Amendment issue if hospital personnel took the urine sample without being directed to do so by the police. He also conceded before the trial court that this is what happened. Jackson's trial lawyer explained to the trial court that he filed his motion to suppress the results of the urine test because he "assumed, and I guess wrongly, that the urine was forcibly seized at the direction of the police," and that one of the officers told him "that they didn't ask or direct the seizure of anything." Nevertheless, Jackson faults the trial court for not holding an evidentiary hearing on the issue, and argues in his appellate brief that "[s]ince the state offered no evidence as to how the urine sample was obtained, the trial court should have ruled in favor of Jackson." This has it all wrong.

[1]

Although the State has the ultimate burden of proof on suppression issues, see State v. Taylor, 60 Wis. 2d 506, 519, 210 N.W.2d 873, 880 (1973),

the defendant has the burden of production and must produce some evidence that makes a prima facie showing that the State violated one of his rights, see Rakas v. Illinois, 439 U.S. 128, 132 n.1 (1978) ("The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure."); United States v. de la Fuente, 548 F.2d 528, 533-534 (5th Cir. 1977) (defendant has initial burden to show that government acted illegally), cert. denied, 431 U.S. 932, 434 U.S. 954. On evidentiary issues, Jackson, like any litigant, has the burden of establishing the applicability of an evidentiary privilege. See Franzen v. Children's Hosp. of Wis., Inc., 169 Wis. 2d 366, 388 n.41, 485 N.W.2d 603, 611 n.41 (Ct. App. 1992) (party asserting privilege has burden of proof on that issue); United States v. Wilson, 798 F.2d 509, 512 (1st Cir. 1986) (party asserting privilege has burden of proof on that issue); see also United States v. Cuozzo, 962 F.2d 945, 949 (9th Cir. 1992) (burden on defendant to move to strike inadmissible evidence), cert. denied, 506 U.S. 978.

[2]

Jackson did not pursue, beyond a passing reference, his alternate theory that the urinalysis and its subsequent disclosure to the State violated his physician/patient privilege. Indeed, Jackson concedes in his brief on this appeal that "the record [is] devoid of any evidence concerning how the urine sample was obtained from" him. By acquiescing in the officer's representation, and by not either producing evidence or making an offer of proof to the contrary, and by also not proffering either evidence or an offer of proof on the patient/physician privilege issue, Jackson abandoned his motion to exclude the results of the urinalysis. See State v. Woods, 144 Wis. 2d 710, 716, 424 N.W.2d 730, 732 (Ct. App. 1988)

(motion made but not pursued is abandoned). A party must do more than simply toss a bunch of concepts into the air with the hope that either the trial court or the opposing party will arrange them into viable and fact-supported legal theories. Jackson's first claim of trial-court error is without merit.

B. Miranda rights.

Edwards v. Arizona, 451 U.S. 477 (1981), declared that when a person in custody tells an interrogating officer that the person wants a lawyer, that person "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Id., 451 U.S. at 484-485. However, "Miranda does not require that attorneys be producible on call, but only...

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